Gabriella Trichilo v. Erin Mills Soccer Club, 2014 HRTO 1402

Human Rights Tribunal of Ontario

B E T W E E N:

Gabriella Trichilo
Applicant

-and-

Erin Mills Soccer Club
Respondent

RECONSIDERATION DECISION

Adjudicator: Alison Renton
Date: September 19, 2014
Citation: 2014 HRTO 1402
Indexed as: Trichilo v. Erin Mills Soccer Club

1In Decision 2014 HRTO 838, dated June 6, 2014, the Tribunal dismissed the Application as abandoned when the applicant failed to attend the hearing on June 5, 2014.

2The applicant filed a Request for Reconsideration (“the Request”) which she emailed on September 8, 2014, at 10:41 p.m. As this was after the Tribunal’s offices had closed, it was deemed received on September 9, 2014, pursuant to Rule 1.22(d) of the Tribunal’s Rules of Procedure (“the Tribunal’s Rules”). On the Request form, the applicant marked off “other factors exist that outweigh the public interest in the finality of Tribunal decisions” as the basis for her request. She submits that she has been unable to correspond due to an illness of an immediate family member, whom she identifies. The family member has been in and out of the hospital for the last few months, is currently home under the “Palliative End of Life Home Care”, and has been a priority for the applicant such that her own health has been secondary.

3The respondent has not filed a response to the Request as it has not been directed to do so by the Tribunal.

law and analysis

4Rule 26.1 of the Tribunal’s Rules says:

Any party may request reconsideration of a final decision of the Tribunal within 30 days from the date of the decision.

5Rule 26.5 of the Tribunal’s Rules sets out the limited circumstances in which reconsideration may be granted:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

6Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case. It is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7Despite Rule 26.1 of the Tribunal’s Rules, the applicant did not file the Request within 30 days of the date of the Decision. Instead, it was filed slightly more than three months after the Decision was issued, and more than two months after the 30 days required by Rule 26.1.

8With respect to the applicant’s submission that she was “unable to correspond due to an illness within my immediate family”, she filed no medical documentation in support of this position. Furthermore, it is unclear whether this pertains only to the late filing of the Request or her failure to attend the hearing following which her Application was dismissed as abandoned. Even if I assume that this explanation pertains to both the late filing of the Request and her failure to attend the hearing, I do not accept this as a factor upon which to grant the Request.

9The applicant was clearly aware that the hearing was scheduled for June 5 and 6, 2014. On May 27, 2014, the applicant filed a Form 11, Response to a Request for Order During Proceedings (“RFOP”) responding to the respondent’s request that the Tribunal dismiss her Application for failing to comply with her disclosure obligations and a Case Assessment Direction issued by the Tribunal and dated May 22, 2014. In addition to submitting her documents over four different emails between May 27 and 28, 2014, in her Response to the RFOP, the applicant specifically identified the June hearing dates, apologized for not replying sooner and submitted, “I have been unavailable because of health-related reasons”. The applicant did not mention any health-related issues pertaining to another family member and did not disclose her own health-related issues.

10The applicant did not communicate with the Tribunal between May 28 and June 5, 2014. She did not request an adjournment of the hearing date because of her own medical issues or her family member’s medical issues.

11She also failed to respond to the respondent’s adjournment request which it made, by email, on June 2, 2014, on which she was copied. The Tribunal denied the respondent’s adjournment request in a Case Assessment Direction (“CAD”) dated June 3, 2014, and advised the parties that they should be prepared to proceed on June 5, 2014. The CAD was sent by email to the parties on June 3, 2014.

12In para. 7 of the Decision, the Tribunal noted that despite holding down the start of the hearing until 10:00 a.m., the applicant had not communicated with the Tribunal to indicate that she was late or unable to attend.

13Accordingly, I do not find that there are other factors that exist that outweigh the public interest in the finality of Tribunal decisions. The applicant’s Request for Reconsideration is denied.